NZ POLICE v MITCHELL [2020] NZHC 1143

NZ POLICE v MITCHELL [2020] NZHC 1143 [27 May 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000027[2020] NZHC 1143BETWEEN NEW ZEALAND POLICEAppellantAND CHEYMAN LEE MITCHELLRespondentHearing: 19 May 2020Appearances: F Sinclair for AppellantP McDonnell and P Tucker for RespondentJudgment: 27 May 2020JUDGMENT OF OSBORNE JThis judgment was delivered by me on 27 May 2020 at 3.00 pmRegistrar/Deputy RegistrarDate:Introduction[1] This appeal concerns the special plea provisions in s 46 Criminal ProcedureAct 2011 (CPA). In particular, is a special plea available where a defendant is chargedunder both ss 32 and 56 Land Transport Act 1998 (LTA) and is convicted of one of thecharges?[2] Cheyman Mitchell, the respondent, was charged under the LTA for driving withexcess breath alcohol pursuant to s 56(1) and driving contrary to a zero-alcohol licencepursuant to s 32(1)(b). On 28 November 2019, the respondent attempted to pleadguilty to both charges, but at the invitation of Judge Neave he instead pleaded guiltyto the s 56 charge and entered a plea of previous conviction to the s 32 charge. Theissue of whether that plea was available was heard by Judge O'Driscoll, who foundthe special plea of previous conviction pursuant to s 46 CPA applies to the s 32 LTAcharge.1 His Honour therefore dismissed the s 32 LTA charge.Application for leave to appeal[3] The Deputy Solicitor-General applies under s 296 CPA for leave to appeal theDistrict Court judgment. The ground of the proposed appeal is that the District CourtJudge erred in law by determining that a special plea was available under s 46 CPA,the respondent having been charged with offences under ss 32 and 56 LTA which arosefrom the same episode of driving. In the event that leave is granted and the appealallowed, an order is also sought reinstating the charge under s 32 LTA.[4] There exist conflicting decisions of the District Court in relation to the subject-matter of the appeal. In this case, Judge O'Driscoll preferred a line of authority whichmay be represented by the judgment of Judge Neave in Police v Tindall.2 JudgeO'Driscoll declined to follow decisions in which the special plea was found to beunavailable.31 Police v Mitchell [2020] NZDC 1999.2 Police v Tindall [2018] NZDC 22252. See also Police v Broom [2015] DCR 157 (DC); Police vPailegutu [2019] NZDC 2135; Police v Ruki [2019] NZDC 24589; and Police v Duncan [2020]NZDC 559.3 Police v Smith [2018] NZDC 2057; Police v Kumar [2019] NZDC 17758.[5] In introducing his judgment, Judge O'Driscoll noted the absence of anydecision of a senior court dealing specifically with whether the special plea is availableto a defendant charged under ss 32 and 56 LTA. His Honour recorded the hope thatthere would be an appeal from his decision so that some guidance may be offered tothe District Court which has to consider the issue on a regular basis.4[6] Responsibly, Mr McDonnell for the respondent did not oppose the granting ofleave to appeal.[7] This appeal concerns a question of law which is the subject of conflictingDistrict Court authority. It falls within s 296(3) CPA because it arose in proceedingsthat relate to the determination of the charge faced by the respondent. I respectfullyadopt the conclusion in this regard of Katz J in Rangitonga v Parker.5[8] Leave is appropriate because the legal questions raised by this appeal arepotentially determinative of the outcome of the second charge the respondent faced.[9] Leave is granted to the Deputy Solicitor-General to appeal.Facts[10] On 18 December 2017, the respondent was convicted of driving with breathalcohol of more than 400 mcg per litre of breath. He was disqualified from drivingfor seven months and ordered to apply for a zero-alcohol licence, which wassubsequently granted.[11] On 19 September 2019, the respondent was found driving a vehicle onBrougham Street, Christchurch. An evidential breath test returned a result of 649 mcgper litre of breath. He was charged under both ss 32 and 56 LTA.4 Police v Mitchell, above n 1, at [2]–[5].5 Rangitonga v Parker [2015] NZHC 1772, [2016] 2 NZLR 73, at [26]–[27].The LTA offences[12] The LTA identifies the responsibilities of participants in New Zealand's landtransport system.6 Primary general responsibilities of participants include therequirement that drivers be licensed.7 There are also primary responsibilitiesconcerning the use of alcohol and drugs, including a proscription of exceedingspecified alcohol limits.8[13] Part 5 creates offences relating to driving (other than alcohol-related offences)and provides penalties for the offences. Section 32, under which the respondent wascharged, falls within pt 5. It provides:32 Contravention of section 5(1)(c)(1) A person commits an offence if the person drives a motor vehicle ona road—(a) while disqualified from holding or obtaining a driver licence;or(b) contrary to an alcohol interlock licence, a zero alcohollicence, or a limited licence; or(c) while his or her driver licence is suspended or revoked.(2) Nothing in subsection (1) applies to any person—(a) who has been ordered by a court to attend an approved drivingimprovement course under section 92(1) or a programmeapproved by the Agency under section 99A or to undergo anytest or examination approved by the Agency; and(b) who, in the course of his or her attendance at that course orprogramme or while undergoing such a test or examination,—(i) in the case of a motorcyclist, drives under thesupervision of a person who holds a driving instructoror testing officer endorsement under Part 5 of theLand Transport (Driver Licensing) Rule 1999 that isrelevant to a class of licence for a motorcycle:(ii) in any other case, drives while accompanied by aperson who holds a driving instructor or testingofficer endorsement under Part 5 of the LandTransport (Driver Licensing) Rule 1999.6 See in particular pts 2–3.7 Section 5.8 Sections 11–12.(3) If a person is convicted of a first or second offence against subsection(1),—(a) the maximum penalty is imprisonment for a term notexceeding 3 months or a fine not exceeding $4,500; and(b) the court must order the person to be disqualified fromholding or obtaining a driver licence for 6 months or more.(3A) If an offence against subsection (1) is a concurrent offence in relationto a qualifying offence for an alcohol interlock sentence, then themandatory disqualification in subsection (3)(b) does not apply andsection 65AH(3)(b) applies.(4) If a person is convicted of a third or subsequent offence againstsubsection (1) (whether or not of the same kind of offence as theprevious offences),—(a) the maximum penalty is imprisonment for a term notexceeding 2 years or a fine not exceeding $6,000; and(b) the court must order the person to be disqualified fromholding or obtaining a driver licence for 1 year or more.(4A) If an offence against subsection (1) is a concurrent offence in relationto a qualifying offence for an alcohol interlock sentence, then themandatory disqualification in subsection (4)(b) does not apply andsection 65AH(3)(b) applies.(5) For the purposes of this section, a conviction for an offence against aprovision of the Transport (Vehicle and Driver Registration andLicensing) Act 1986 or the Transport Act 1962 corresponding to anoffence specified in subsection (1) is to be treated as a conviction foran offence specified in that subsection.(6) The imposition of a mandatory disqualification under this section issubject to section 81 (which allows a court not to orderdisqualification for special reasons relating to the offence).[14] The second offence with which the respondent was charged, under s 56, fallswithin pt 6 of the Act. It provides:56 Contravention of specified breath or blood-alcohol limit(1) A person commits an offence if the person drives or attempts to drivea motor vehicle on a road while the proportion of alcohol in theperson's breath, as ascertained by an evidential breath testsubsequently undergone by the person under section 69, exceeds 400micrograms of alcohol per litre of breath.(1A) A person commits an infringement offence if the person drives orattempts to drive a motor vehicle on a road while the proportion ofalcohol in the person's breath, as ascertained by an evidential breathtest subsequently undergone by the person under section 69, exceeds250 micrograms of alcohol per litre of breath but does not exceed 400micrograms of alcohol per litre of breath.(2) A person commits an offence if the person drives or attempts to drivea motor vehicle on a road while the proportion of alcohol in theperson's blood, as ascertained from an analysis of a blood specimensubsequently taken from the person under section 72 or section 73,exceeds 80 milligrams of alcohol per 100 millilitres of blood.(2A) A person commits an infringement offence if the person drives orattempts to drive a motor vehicle on a road while the proportion ofalcohol in the person's blood, as ascertained from an analysis of ablood specimen subsequently taken from the person under section72(1)(b) to (e) or 73, exceeds 50 milligrams of alcohol per 100millilitres of blood but does not exceed 80 milligrams of alcohol per100 millilitres of blood.(2B) A person commits an infringement offence if—(a) the person fails or refuses to undergo an evidential breath testafter having been required to do so under section 69; and(b) analysis of a blood specimen subsequently taken from theperson under section 72(1)(a) indicates that the person droveor attempted to drive a motor vehicle on a road while theproportion of alcohol in the person's blood exceeded 50milligrams of alcohol per 100 millilitres of blood but did notexceed 80 milligrams of alcohol per 100 millilitres of blood.(3) If a person is convicted of a first or second offence against subsection(1) or subsection (2),—(a) the maximum penalty is imprisonment for a term notexceeding 3 months or a fine not exceeding $4,500; and(b) the court must order the person to be disqualified fromholding or obtaining a driver licence for 6 months or more.(3A) The mandatory disqualification in subsection (3)(b) does not applyif—(a) an order is made under section 65; or(b) an alcohol interlock sentence is ordered under section65AC(1).(4) If a person is convicted of a third or subsequent offence againstsubsection (1) or subsection (2), or any of sections 57A(1), 58(1),60(1), or 61(1) or (2) (whether or not that offence is of the same kindas the person's first or second offence against any of thoseprovisions),—(a) the maximum penalty is imprisonment for a term notexceeding 2 years or a fine not exceeding $6,000; and(b) the court must order the person to be disqualified fromholding or obtaining a driver licence for more than 1 year.(4A) The mandatory disqualification in subsection (4)(b) does not applyif—(a) an order is made under section 65; or(b) an alcohol interlock sentence is ordered under section65AC(1).(5) For the purposes of this section, a conviction for an offence against aprovision of the Transport Act 1962 corresponding to an offencespecified in subsection (4) is to be treated as a conviction for anoffence specified in that subsection.(6) The imposition of a mandatory disqualification under this section issubject to section 81 (which allows a court not to orderdisqualification for special reasons relating to the offence).[15] For the appellant, Mr Sinclair also invokes the provisions in the LTA(introduced by a 2017 amendment)9 which established the concept of "concurrentoffence" as an offence which occurred as part of the same series of events as the factsthat gave rise to a person's conviction (for a qualifying offence).10 Later provisionsof the Act which create offences and establish sentencing parameters include specificsentencing outcomes where a concurrent offence is involved. Section 32(3A) and s32(4A) above at [13] are such provisions.Plea of previous conviction under the CPAThe statutory provision[16] The CPA provides through s 46 for a special plea of previous conviction (witha parallel in s 47 in relation to previous acquittal). The provision reads:46 Previous conviction(1) If a plea of previous conviction is entered in relation to a charge, thecourt must dismiss the charge under section 147 if the court is satisfiedthat the defendant has been convicted of—(a) the same offence as the offence currently charged, arisingfrom the same facts; or(b) any other offence arising from those facts.9 Land Transport Amendment Act 2017.10 Land Transport Act 1998 (LTA), s 2.(2) Subsection (1) does not apply if—(a) the defendant was convicted of an offence and is currentlycharged with a more serious offence arising from the samefacts; and(b) the court is satisfied that the evidence of the more seriousoffence was not readily available at the time the chargingdocument for the previous offence was filed.Previous law[17] Sections 46 and 47 of the CPA replaced ss 358 and 359 of the Crimes Act 1961as the statutory provisions for protection against double jeopardy.[18] The issues raised by the former law and the relationship between the CrimesAct and the CPA provisions are informatively explored by Professor Mahoney in hisarticle in the 2013 New Zealand Law Review.11[19] The most detailed judicial discussions on the relationship of the new statutoryregime to the old came in the judgment of Katz J (in the High Court) in Rangitonga vParker and in the judgment of the Court of Appeal, given by Randerson J, on appeal.12[20] Under the Crimes Act, the Court of Appeal had held that the question was notwhether the facts or the evidence relevant to both offences were the same, but whetherthe offences were "the same or substantially the same".13 Consequently, the plea ofprevious conviction did not apply where "two distinct offences were committed byone act".14[21] The Court of Appeal in Rangitonga identified cases which illustrated thegenerally narrow view taken under the Crimes Act as to the availability of the specialpleas, stating:1511 Richard Mahoney "From 'The Same Offence' to 'The Same Facts' – The Criminal Procedure ActSuddenly Strengthens the Pleas of Previous Conviction and Previous Acquittal" [2013] NZL Rev171.12 Rangitonga v Parker, above n 5; and Rangitonga v Parker [2016] NZCA 166, [2018] 2 NZLR796.13 R v Brightwell [1995] 2 NZLR 435 (CA) at 437.14 R v Brightwell, above n 13, at 436–438.15 Rangitonga v Parker, above n 12.[29] Despite the adoption of the "same or substantially the same" formula,it must be accepted that the New Zealand courts have generally takena narrow view of the availability of the special pleas. The focus hasbeen very much on comparing all the legal elements of the previousand new charges. For example, in Smith v Hickson a plea of previousconviction was found not to be available.16 The new charges ofexposing liquor for sale and opening premises for the sale of liquorboth arose from the same facts as the original charge of selling liquorduring closed hours. And, in Brightwell, the new charge of assaultwith a shotgun arose from the same facts as the original charge ofpresenting a shotgun at the same victim.17 Again, the plea of previousconviction was not available. In both cases, that was because the newcharges were for different offences even though they arose in essencefrom the same actions by the defendant.[30] In Ministry of Transport v Hyndman a plea of previous acquittal failedwhere the new charge of driving while under the influence of alcoholarose on the same facts as the original charge of driving with excessbreath alcohol.18 And, in Connolly, the new charge under s 129A ofthe Crimes Act of inducing sexual connection by a threat arose fromthe same facts as the original charge under the Prostitution ReformAct 2003 (inducing commercial sexual services by a threat). Again,the plea of previous acquittal failed.[22] In the High Court judgment in Rangitonga, Katz J identified internalinconsistencies in the legislative history pursuant to which the CPA provisions in ss 46and 47 came to be enacted.19 Katz J found however that:20(a) The new "arising from the same facts" test was intended to differ fromthe existing test under s 358 of the Crimes Act. The aim was to providegreater certainty than the previous statutory test, which required thatthe two offences be the same or substantially similar.(b) It was intended that the new test bar the prosecution of not only thesame offences but also different offences arising out of the same facts("the prosecution cannot then have a further run at the case using adifferent charge"). The test was therefore clearly intended to bebroader than the Crimes Act test.(c) It was not envisaged, however, that a "series of events" would fallwithin the scope of the phrase "arising from the same facts".16 Smith v Hickson [1930] NZLR 43 (SC).17 R v Brightwell, above n 13.18 Ministry of Transport v Hyndman [1990] 3 NZLR 480 (HC).19 Rangitonga v Parker, above n 5, at [51]–[61].20 At [60].[23] In considering the CPA reference to offences "arising from the same facts",Katz J focused on the concept of the "core facts" which the court must determine. HerHonour observed that determining the "core facts" of the original offence, possiblywith reference to a jury question trail, provides a helpful starting point in ascertainingwhether an offence is based on the "same facts".21 She continued:22Once all of the core facts of the offending have been identified it would then benecessary to consider whether the subsequent charge "arises" from those facts.Difficult issues will no doubt arise as to what degree of common facts isnecessary in order to found a special plea. It seems unlikely that it would benecessary to establish that all of the core facts are the same, as this wouldessentially mean that only an identical offence would be barred.[24] Katz J then proceeded to consider whether there was the "same core punishableact" or "central common punishable act" underpinning both charges faced byMr Rangitonga.23 Her Honour expressed the view that where a common punishableact is central to both offences, they will usually arise out of the same facts.24 Havingthen considered the rape and injuring charges which Mr Rangitonga faced, Katz Jconcluded:[86] It follows, in my view, that the injuring charge does not "arise fromthe same facts" as the rape charge. While there is some degree offactual overlap, it is relatively small. The actus reus of the alleged rapeis the act of sexual intercourse. The actus reus of the injuring chargeis the punching and strangling. The core punishable acts aresignificantly different. The two charges do not arise out of the samefacts, rather they relate to two incidents that form part of the samebroad series of events.[25] Accordingly, Katz J concluded that the District Court Judge had been correctto conclude that the plea of previous acquittal was not available. The appeal wasdismissed.[26] The Court of Appeal granted leave to appeal from the High Court judgmentbut also dismissed the appeal.25 In delivering the judgment of the Court, Randerson J21 At [79].22 At [80].23 At [83]–[84].24 At [82].25 Rangitonga v Parker, above n 12.identified a general agreement with the approach adopted by Katz J in relation to theinterpretation of s 47, which must be equally applicable to s 46. His Honour stated:[40] We are in general agreement with the approach adopted by Katz J tothe interpretation of s 47.[41] We agree that the reference to offences "arising from the same facts"in s 47 is intended to apply to cases where there is a commonpunishable act central to both the previous and new charge. We wouldadd that the same approach should apply to a common punishableomission. The new section focuses on the substance of the facts givingrise to the previous and new charges rather than a fine-grainedcomparison of each element of the charges.[42] We explain this concept by reference to the present case. The centralpunishable act for the rape charge was sexual connection without theconsent of the complainant. By contrast, the central punishable act forthe injuring charge was punching and attempting to strangle thecomplainant. In these circumstances, the plea of previous acquittal isnot available because the current charge does not arise from the samefacts as the previous charge.[27] Randerson J then summarised the reasons why the Court of Appeal hadadopted that approach:26(a) There is nothing in the relevant Parliamentary materials to suggestthat a radical departure from the existing law was intended. Rather,the policy goals were fairness, efficiency and clarity of language.(b) The approach we favour would provide greater clarity and certaintythan the alternative approach advanced by the appellant (which wediscuss at [44]—[46] below). It would enable decisions on theavailability of the plea to be made without undue difficulty. In mostcases it ought to be straightforward to identify the central punishableacts or omissions by reference to the essential elements of theoffences.(c) By focusing on the substance of the facts giving rise to the previousand new charges, an unduly technical approach to the availability ofthe special plea would be avoided. This would give better effect to thedouble jeopardy principle recognised by s 47 and by s 26(2) of theNew Zealand Bill of Rights Act.(d) An expansive approach to s 47 would not sit well with the recentstatutory amendments establishing very limited circumstances inwhich previously acquitted persons may be re-tried.(e) There is no room for judicial discretion when the special plea is madeout. The court has no alternative other than to dismiss the charge. AsKatz J said:26 At [43] (footnotes omitted).[69] the abuse of process doctrine provides a flexible andeffective safety net for dealing with cases that do not fallwithin the scope of the special pleas, but where the spirit (ifnot the letter) of the rule against double jeopardy is breached.Given the existence of that jurisdiction there is no need to givethe special pleas an expansive interpretation in order to ensurethat justice is done in an individual case.[28] The Court of Appeal in Rangitonga expressed its overall conclusion in relationto the application of s 47 thus:[49] The application of s 47 in practice will necessarily be fact dependent.The general approach we have adopted of identifying and comparingthe central punishable act or omission in the previous and new chargesmay need to be developed and refined as cases arise. It is to beexpected that this approach will have a greater focus on substance thanhas been the case hitherto.Subsequent application of Rangitonga[29] Judge O'Driscoll in this case followed the conclusion reached by Judge Neavein Tindall.27 I will first refer to Judge Neave's reasoning in Tindall.[30] It was submitted for the Police that the core punishable act of Mr Tindall's s56 charge was driving on a road with a blood alcohol level greater than 80 mg ofalcohol per 100 ml of blood, while the core punishable act of the s 32 charge wasdriving on a road while the holder of a zero-alcohol licence in breach of the conditionsof that licence.28[31] Judge Neave rejected that Mr Tindall's core punishable act for both offenceswas driving on a road with alcohol in his system. Describing the acts of the defendantwhich gave rise to each offence as having "absolutely no difference" and being"virtually identical", Judge Neave continued:29The only difference essentially relates to matters of status. Or perhaps to putit another way, the only difference relates to the amount of alcohol found tobe in the defendant's blood.27 Police v Tindall, above n 2.28 At [31].29 Police v Tindall, above n 2, at [25] and [27].[32] Judge Neave rejected as erroneous the prosecutor's focus on the purposes ofthe LTA, stating that such focus is not required, the focus instead being "on the factsof the case", to determine whether those are sufficiently similar to engage ss 46 or47.30[33] In his Honour's decision in this case, Judge O'Driscoll referred to JudgeNeave's reasoning in Tindall. His Honour referred also to other District Courtdecisions for the same effect as Tindall.[34] Judge O'Driscoll referred also to the two contrary District Court decisions,being that of Judge Sainsbury in Police v Smith and of Judge Cunningham in Police vKumar.31[35] In Police v Smith, Judge Sainsbury identified in the Court of Appeal'sjudgment in Rangitonga guidance on the application of ss 46 and 47, adding his ownemphasis to the conclusion that the provisions are intended to apply to cases wherethere is a common punishable act central to both the previous and new charges.[36] In contrast to other District Court judgments, Judge Sainsbury referred to themischief of the offences, observing that the zero-alcohol licence breach is in the sameoffence provision as the charges of driving while disqualified and driving while alicence is suspended or revoked (under s 32(1) LTA).32[37] Judge Sainsbury recorded that both charges share the essential factual contentthat Ms Smith must have been driving a vehicle on a road.33 But his Honour notedthat such an activity is not inherently a punishable act – rather it is what is associatedwith it that is punishable.34 His Honour then identified the two punishable acts underss 56(1) and 32 LTA as being:3530 At [33].31 Police v Smith, above n 3; and Police v Kumar, above n 3.32 At [19].33 At [21].34 At [21].35 At [22]–[23].(a) s 56(1) – driving a car on a road when the driver's level of alcohol isestablished by statutory prescribed procedures to be over 400 mcg ofalcohol per litre of breath; and(b) s 32 – when a person, subject to a zero-alcohol licence, drives a car ona road when they have alcohol in their system.[38] Judge Sainsbury contrasted the "design" or "concern" of the two offences, onebeing to prevent those impaired by alcohol being on the road to the danger of othersand themselves and the other being to punish those who breach lawful restrictions onthe ability to drive, being only "obliquely concerned with preventing driving impairedby alcohol".36[39] Judge Sainsbury accordingly concluded that the facts giving rise to eachoffence were significantly different, so that s 46 CPA did not apply.37[40] In Police v Kumar, Judge Cunningham adopted Judge Sainsbury's reasoning,including the analysis of the punishable acts. Her Honour noted as an important factorwhich should not be ignored that driving contrary to the conditions of a licence ordriving while disqualified involve breaches of court orders.38[41] Judge Cunningham referred to the observation of Judge Neave in Tindall whichsuggested that a special plea might be available where a defendant was charged bothwith breach of a protection order and an act of violence against the complainant arisingfrom the same incident.39 Her Honour implicitly rejected that possibility, identifyingthe breach of the protection order as involving a different punishable act (as with thebreach of the zero-alcohol licence).Further Court of Appeal authority[42] Reference may be made to two Court of Appeal decisions in which Rangitongawas followed.36 At [24]–[25].37 At [26]–[27].38 Police v Kumar, above n 3, at [21].39 At [22], citing Police v Tindall, above n 2, at [30].[43] In Filitonga v R the defendant (who had HIV and knew it) had been foundguilty and convicted of causing grievous bodily harm to the complainant with recklessdisregard for her safety and of criminal nuisance, by having unprotected sex with thecomplainant knowing that this would endanger the complainant's life, safety orhealth.40 Applying the "common punishable act" test under Rangitonga, the Court ofAppeal found that there was a common punishable act, namely having unprotectedsex, while knowingly HIV-positive, being reckless as to the consequences. On thatbasis the conviction on one of the offences would preclude the proper entry of aconviction on the other. The appeal was allowed and the convictions set aside.[44] In O'Reilly v Chief Executive of the Department of Corrections, Mr O'Reilly,(the subject of an Extended Supervision Order ESO)), was charged with failingto comply with his statutory reporting obligations under the relevant Act and offailing to comply with the conditions of his ESO under the Parole Act 2002.41 Havingpleaded guilty to the charges of failing to comply with statutory reporting obligations,Mr O'Reilly had unsuccessfully applied to the District Court to enter pleas of previousconvictions to the Parole Act charges.42 Mr O'Reilly was convicted. Heunsuccessfully appealed to the High Court.43[45] On Mr O'Reilly's application for leave to appeal to the Court of Appeal, thatCourt referred to Rangitonga and the concept of "common punishable act" and"common punishable omission".44[46] Counsel for Mr O'Reilly submitted that there existed common punishable acts,being Mr O'Reilly's change of employment status and his being absent from hisaddress.[47] The Court of Appeal rejected that submission, as had Woolford J in the HighCourt. The Court held that each set of charges faced by Mr O'Reilly required proofof different omissions, namely omissions to gain prior approval and omissions to40 Filitonga v R [2017] NZCA 492.41 O'Reilly v Chief Executive of Department of Corrections [2018] NZCA 313, [2018] NZAR 1327.42 Department of Corrections v O'Reilly [2017] NZDC 29066.43 O'Reilly v Department of Corrections [2018] NZHC 469.44 O'Reilly v Chief Executive of Department of Corrections, above n 41.report, after the events, change of employment and absences from an address. TheCourt of Appeal observed:45The omissions were the punishable acts and they were different.[48] The Court of Appeal proceeded to explain the significance of the differences:46They are matters of fact forming elements of the offences. The ESO controlsMr O'Reilly's ability to choose a work environment and constrains him in hischoice of residence and absences therefrom. That is a measure to protect thepublic. The Child Protection Act reporting provisions are for the purpose ofinforming the police about where Mr O'Reilly has chosen to work, where hehas chosen to live, and absences he has chosen to take from his residence. Itis a monitoring measure.[49] In other words the Court of Appeal had regard to the differing purposes of theoffences (one being to protect the public and the other to enable police monitoring).[50] The Court adopted the analogy suggested by counsel for the Department ofCorrections:47If a person driving a car is stopped by the police and it is found the car hasneither a warrant of fitness, nor is it registered, then without question thedriver can be prosecuted for those omissions. The central fact of driving iscommon, but the omission in each case is entirely different. If one omissionhad not occurred, then only the other offence could be charged.[51] The Court of Appeal declined leave to appeal.The District Court judgment under appeal[52] In the judgment under appeal, Judge O'Driscoll both set out the relevantstatutory provisions and reviewed the case law in the Court of Appeal and DistrictCourt.[53] His Honour summarised the submissions made by the police prosecutor andthose made by Mr McDonnell for the respondent. From those submissions and thecase law, his Honour identified what he needed to determine in this way:4845 At [15].46 At [16].47 At [18].48 Police v Mitchell, above n 1, at [82].It is therefore necessary to determine if the level of alcohol, the method forascertaining this and the holding of a zero-alcohol licence are only elementsof the offence or also facts giving rise to them.[54] He then discussed those three matters:(a) Alcohol level:His Honour noted that, while s 32 LTA refers to a level of any alcohol and s 56specifies a statutory limit of alcohol, "the level of alcohol giving rise to theoffence is the actual breath or blood alcohol level of the defendant", a matter"factually the same for each offence regardless of what is required to meet theoffence".49(b) Testing method:Whereas the prosecutor had distinguished s 32 from s 56 upon the basis that itis only a charge under s 56 that involves prescribed evidential breath testprocedures, that is simply the method used to ascertain an alcohol level and isnot a fact giving rise to the offence. The Judge commented that in any case thesame method will be used for both offences.50(c) Zero-alcohol licence:The police prosecutor had submitted that Tindall was wrongly sided because itignored core facts relating to the steps involved in relation to the zero-alcohollicence, namely a court order followed by the defendant's successfulapplication for a zero-alcohol licence followed by the defendant's ignoring thecourt order. Judge O'Driscoll, in applying the Rangitonga test of a "commonpunishable act or omission", adopted Judge Neave's conclusion in relation tothe ss 32 and 56 charges, that there was a common punishable act namely thedefendant's driving on a road having alcohol in his system and having drunkalcohol before driving.49 At [84]–[85].50 At [86].His Honour concluded that the respondent's breach of his zero-alcohol licencewas not in the Court of Appeal's terms a "punishable act" because the act thatachieves that is the drinking and driving.[55] Judge O'Driscoll therefore concluded that he preferred Judge Neave's positionfrom an interpretation perspective.51 His Honour nevertheless recorded that he couldsee "strong policy reasons for the approach of Judge Sainsbury [in Police v Smith]".52The matters Judge O'Driscoll specifically identified were:(a) In relation to charges laid simultaneously, it is not clear that Parliamentintended the rules against double jeopardy to apply because their focushad been on preventing punishment again for the same crime andestablishing finality, whereas when punishment has yet to occur for thefirst offence, a cumulative sentence or totality principles can be applied.(b) Acceptance of the special plea prevents the Court from denouncing thebreach of a court order through a separate conviction, a matter whichhas particular significance if double jeopardy is argued when adefendant is charged both with "male assaults female" and breach of aprotection order.[56] His Honour agreed with the approach taken in identified District Courtdecisions that there was a common punishable act where the two charges involved anassault which gave rise to the breach of a protection order.[57] In conclusion, Judge O'Driscoll again referred to there being "clear policyreasons" for finding that the fact that a defendant has obtained a zero-alcohol licenceis a fact that gives rise to the s 32 offence, so that the two offences arise from differentfacts.53 But his Honour concluded that such a finding would be inconsistent with thestatutory wording of "arising from the same facts" and the Court of Appeal's focus onthe "core punishable act".5451 At [93].52 At [93].53 At [109].54 At [110].Appellant's submissions[58] For the appellant, Mr Sinclair provided early in his submissions a summarywhich helpfully identified the gist of his submissions:6. The Land Transport Act 1998 contemplates that "concurrent" offencesmay arise from the same facts. The intended operation of the Act isinterfered with if s 46 is used to prevent simultaneous convictions.7. In this case, the conduct underlying the two offences involvedoverlapping facts but not the same facts. A degree of overlap does notprevent the identification of different parcels of conduct, justifying thelaying of multiple charges. Under Rangitonga, reference to theelements of the offences continues to play a role in that assessment.Section 46 does not prevent the laying of multiple charges andsimultaneous convictions. The rationale for the double jeopardy ruleis not offended by proceeding in this way. Unlike Filitonga, this wasnot a situation in which the charges needed to be laid in the alternative– indeed, the Land Transport Act anticipates there may be"concurrent" offences.(footnotes omitted)[59] The balance of Mr Sinclair's submissions were then addressed to two mainarguments:(a) that, in a situation like this, the LTA requires multiple convictions forthe same act of driving; and(b) that this case involves overlapping rather than identical facts.[60] Mr Sinclair, in relation to the need for multiple convictions for the same act ofdriving, referred to the regime of increasing penalties for subsequent offences. Thereis a lower set of penalties when a person is convicted of a first or second offence anda higher set of penalties for a third or subsequent offence.55 In both sections, the thirdor subsequent offence carries a penalty of imprisonment for a maximum of two years,a maximum fine of $6,000, and a minimum disqualification of one year.55 LTA, ss 32(4) and 56(4).[61] As Mr Sinclair submitted, a defendant's reoffending trajectory (if it occurs)cannot be predicted as to whether it may involve licensing breaches or excess alcoholoffences.[62] Mr Sinclair illustrated the issue by reference to a defendant who successfullyenters a special plea to an excess alcohol charge, having pleaded guilty to breach of azero-alcohol licence. Should that person subsequently accrue two excess alcoholconvictions, they will be subject to sentencing on the second such conviction on thebasis it constitutes their second offence, rather than their third offence. Mr Sinclairsubmitted that the intended operation of the LTA is disrupted if that is allowed to occur.[63] Mr Sinclair submitted that the 2017 amendments to the LTA which establishedthe concept of "concurrent offence" (above at [15]) simply recognised that one offencemay arise from the "same series of events as the facts that give rise to another",clarifying what is to happen when there is a particular combination of convictions.The amendments serve to explain how the two sentences are to mesh together. As MrSinclair submitted, s 32(3A) and (4A) are examples. If a person commits one of thelicensing offences under s 32(1), the usual period of mandatory disqualification doesnot apply, if that offence is concurrent with a qualifying offence. There will insteadbe the mandatory interlock sentence for the qualifying offence, and s 65AH LTA thenexplains how other aspects of the two sentences should be assessed. Mr Sinclair notedthat within that narrow range of situations, a conviction for breach of a zero alcohollicence may arise concurrently with a qualifying offence, as it will in the event of acombination of a zero alcohol licence breach under s 32(i)(b) and driving whileincapable of having proper control in s 58(1) LTA.[64] Turning to the need for common punishable acts, Mr Sinclair (by reference todiagrams) focussed on the Court of Appeal's example of driving offences which donot contain common acts (above at [50]).56 In the O'Reilly example, the act of drivingis common but the other core circumstances (that the car does not have a warrant offitness and is not registered) are not common to both offences.56 O'Reilly v Chief Executive of the Department of Corrections, above n 43, at [18].[65] In Mr Sinclair's submission, the analysis of the "core punishable act" shouldnot change in relation to the charges faced here by Mr Mitchell where the singlecommon fact is that Mr Mitchell drove with alcohol (which is not an offence per se).The offences are committed when there is a breach of a zero-alcohol licence or areading of excess alcohol. Mr Sinclair adopted the terminology of "parcels ofconduct". He noted that no particular level of alcohol is required in one parcel ofconduct whereas a person's licence status forms no part of the other parcel of conduct.[66] Mr Sinclair contrasted the present case with that in Police v Broom.57 Thedefendant there was charged with offences against both ss 32 and 57AA LTA. Section57AA creates a number of offences where the holder of a zero alcohol licence driveson a road with varying levels of alcohol per litre of breath and per 100 ml of blood.As Judge Wolff found, there appear to be no circumstances where someone whocommits the second offence (under s 57AA) would not also commit the first (unders 32).58Respondent's submissions[67] For the respondent, Mr McDonnell submitted that Judge O'Driscoll had noterred in law in finding that he must accept the special plea.[68] Mr McDonnell took the Court through a comprehensive review of thejudgments in Rangitonga, the other Court of Appeal authorities, and the conflictingDistrict Court decisions.[69] Mr McDonnell referred also to s 26(2) New Zealand Bill of Rights Act 1990which provides that no one who has been finally acquitted or convicted of, or pardonedfor an offence, shall be tried or punished for it again.[70] In turning to the application of s 46 CPA, he submitted that both JudgeO'Driscoll in this case and Judge Neave in Tindall had correctly applied s 46 byreference to the Court of Appeal's Rangitonga test of "core punishable act". Hesubmitted that the core punishable act was correctly identified as the respondent's57 Police v Broom, above n 2.58 At [9].driving on a road with alcohol in his system. Mr McDonnell invited this Court to viewthe appellant's reliance upon authorities such as O'Reilly as "too widely focused ondistinguishable factual elements". He submitted that the appellant's approach fails todirectly focus on the core punishable act. He submitted that Mr Sinclair's approachinvites what the Court of Appeal rejected in Rangitonga, namely a "fine-grainedcomparison of each element of the charges".59[71] Mr McDonnell in particular invited this Court to reject any analogy with thedriving example provided by the Court of Appeal in O'Reilly. Mr McDonnell acceptedthat the common act of driving is present but argued that warrant infringement relatesto warrant of fitness mandatory requirements whereas the licence infringement relatesto vehicle licence regulations. Mr McDonnell submitted that the appellant incorrectlydrew support from the recognition of "concurrent offence" under the LTA. MrMcDonnell characterised the concurrent offence regime under the LTA as addressinga very specific and limited issue in relation to sentencing where the "concurrentoffence" will be a non-alcohol related offence.[72] Mr McDonnell identified s 57AA LTA as an amendment intended to get aroundthe mischief underlying the s 32(1)(b) charge by not having an offender prosecutedtwice for the same offence.[73] Mr McDonnell rejected any suggestion in the appellant's submissions that thes 56 offence is not solely focused on public safety issues. He submitted that there is acommon safety element in both ss 32 and 56 being the prohibition on alcohol in thedriver's system.[74] In conclusion, Mr McDonnell submitted that Judge O'Driscoll had correctlyapplied the test articulated in Rangitonga.59 Rangitonga v Parker, above n 12, at [41].Discussion[75] The test that s 46(1)(b) CPA expressly requires the Court to apply to the twooffences with which Mr Mitchell was charged is whether the breach of Mr Mitchell'szero alcohol licence arose from the same facts as his excess breath alcohol offence.[76] The authorities in relation to s 46 CPA which this Court and the District Courtmust follow, where applicable, are those I have discussed namely Rangitonga,Filitonga and O'Reilly.60[77] As explained by the Court of Appeal, s 46 applies where the central or corepunishable act or acts are common to both charges. The Court of Appeal anticipatedthat this approach would make it straightforward to identify the central punishable actsor omissions by reference to the essential elements of the two offences. The court isto avoid a fine-grained comparison of each element of the charges – that is to say, theCourt must identify in relation to each charge the core events which make the conductpunishable rather than examine the elements of the charges in too fine a detail. Twosets of circumstances identified in the Court of Appeal judgments particularly assist inthe present case.[78] In Rangitonga, the special plea could not be accepted because the corepunishable acts – sexual intercourse in relation to the alleged rape and punching andstrangling in relation to the alleged injuring – were significantly different. In the caseof the rape, the core of the offence is that the defendant had sexual intercourse withthe complainant, without consent. In the case of the injuring charge, the corecriminality lies in the (unconsented) assault. The lack of consent is common to bothcharges, but the core punishable acts are significantly different.[79] In Filitonga, on the other hand, there was an identifiable common punishableact in relation to both the charges, in that the defendant had unprotected sex, whileknowingly HIV positive, being reckless as to the consequences. Significantly, theCourt of Appeal's analysis establishes that the analysis is not solely on the "act" itself,60 Rangitonga v Parker, above n 12; Filitonga v R, above n 40; and O'Reilly v Chief Executive of theDepartment of Corrections, above n 41.as the Court's overarching test might suggest, but takes into account the other corefeatures of the offending, namely the defendant's knowledge of his condition and hisrecklessness as to the consequences.[80] The third situation identified by the Court of Appeal of assistance in the presentcase lies in the driving offences analogy drawn by the Court in O'Reilly, where aperson drives their car when it does not have a warrant of fitness and is not registered.As the Court of Appeal identified, the central fact of driving may be common but thatdoes not constitute the situation as one in which there is a "common punishable act".As explained by the Court of Appeal, the omission in each case is entirely different,one relating to a warrant of fitness and one relating to registration.[81] The analogy identified by the Court of Appeal in O'Reilly serves to emphasisethat the concept of "a common punishable act central to both charges", adopted inRangitonga, is a convenient summation, rather than one which requires a single focuson "acts" alone. What the provisions themselves require is an examination as towhether the "facts" are the same.[82] Applying that statutory test, in accordance with the Court of Appeal'sexplanation and formulations of it, I am satisfied that the two offences with which MrMitchell was charged do not arise from the same facts as required for a special plea.[83] The analysis which has led to the acceptance of a special plea in a number ofcases, including Tindall and the present case, has understandably identified ascommon features of the defendants' offending that there has been driving, it has beenon a road, and the defendant is affected by an amount of alcohol. But such an analysisis to ignore the very elements which make the conduct punishable. In other words,there has been a successful identification of common core facts but not anidentification of common core punishable acts.[84] A key element which established Mr Mitchell's excess breath alcohol offencewas that his alcohol level was excessive.[85] Similarly, a key element which made his driving punishable on the secondcharge was that the driving was in breach of his zero-alcohol licence. But for MrMitchell possessing only a zero alcohol licence, the act of driving on the road withsome level of breath alcohol would not have been punishable.[86] There is a suggestion in at least some of the District Court judgments that todraw the distinction between the two offences which I have identified is to undertakethe "fine-grained comparison of each element of the charges" which the Court ofAppeal in Rangitonga rejected. But it is not. The excessive level of breath alcoholand the breach of the licence entitlements are respectively at the core of the twocharges. The Court of Appeal's driving analogy in O'Reilly serves to emphasise thatthe status of a vehicle – whether it has a warrant of fitness or is registered – is an aspectof the core punishable facts. So, too, on my analysis, is the licensing status of thedriver when the offence charged is driving in breach of a licence condition.[87] As did the Court of Appeal in O'Reilly, I have found an analogy with otheroffences of assistance in considering these issues. The Sale and Supply of AlcoholAct 2012 creates a number of prohibitions and offences. It is an offence to sell orsupply alcohol on licensed premises on certain days, including for instance GoodFriday.61 Section 239 of the Act makes it an offence for a licensee on any licensedpremises to sell or supply alcohol to a person who is under the purchase age. Thesecond offence is clearly a measure to protect minors. The ban on Good Friday salesclearly serves a different purpose. If a publican were to sell alcohol to a minor onGood Friday there is, as identified by the Court of Appeal in the O'Reilly analogy, acommon central fact, in this analogy of selling alcohol. But in this analogy, theprotections are entirely different. One protection is in relation to what may be termed"sacred" days; the other protection is in relation to an age group of persons. As in theO'Reilly analogy, there is no doubt that the publican selling alcohol to a minor onGood Friday may be prosecuted for both offences.[88] Just as there is a different focus of the two offences under the Sale and Supplyof Alcohol Act, there is an appreciably different focus in the driving offences, the first61 Sections 47(1) and 259.being concerned with the prohibition of driving with excess breath or blood alcoholand the second being breaching the requirement to have a licence or to drive withinthe requirements of a licence.[89] The Court of Appeal articulated in Rangitonga the importance, in relation tothe availability of special pleas, of having a straightforward test by which to identifycentral punishable acts and omissions.62 That does not suggest that the Court ofAppeal was anticipating that in such cases the relevant court would be having toanalyse in detail the structure and purposes of the governing statute or statutes. To theextent that counsel have invited a broader consideration of the legislation, I considerthat the "concurrent offence" regime provided for in the LTA and the structure ofincreasing penalties for repeat offences tends to reinforce the conclusion that it isimportant in relation to offences under the LTA that courts do not lightly conclude thattwo distinct offences share common core punishable facts. But that is not a materialfactor in my above finding.[90] The availability of a charge under s 57AA LTA where a defendant is allegedboth to have breached their zero-alcohol licence and to have offended against thebreath alcohol regime does not cut across a prosecutor's discretion to charge underone set of provisions or the other. The prosecutor may elect to lay two separate chargesas in this case.Result[91] The appeal is allowed. I find as a matter of law that Judge O'Driscoll erred infinding that the plea of "previous conviction" applied to the s 32 LTA charge. TheDistrict Court is to reinstate the charge under s 32 LTA.Osborne JSolicitors:Crown Law, WellingtonJoynt Andrews, Christchurch62 Rangitonga v Parker, above n 12, at [43(b)].